Review of \u3cem\u3eThe Movement for Black Lives: Philosophical Perspectives\u3c/em\u3e

Philosophy gets a bad rap when it comes to its engagement with the world’s most pressing social problems. Recall that famous epigrammatic final note from Karl Marx’s Theses on Feuerbach: “The philosophers have only interpreted the world, in various ways; the point, however, is to change it.” It may be tempting to take this line as a call to substitute studious reasoning for an “act first, think later” strategy. But that doesn’t seem to be Marx’s intention. Rather than being a call for “blind activism” that rejects “rational dialogue, discourse, or discussion,” Marx is better read as challenging philosophy to avoid becoming a barren discipline disconnected from social struggle (Cornel West, The Ethical Dimensions of Marxist Thought [New York: Monthly Review Press, 1991], 68–69). Marx’s point, in other words, was not that philosophers should move aside and let the activists handle things. Instead, he wanted to recommend a more purposeful role for philosophy in our society: a philosophy that informs activism and other social activity

The Short Unhappy Life of the Negotiation Class

On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division, approved a novel negotiation class certification in the massive Opiate multidistrict litigation (MDL). Merely one year later on September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism. This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry. The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster’s negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class. The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early juncture in proceedings with an accurate assessment of the class size as an incentive to enable defendants to secure global peace. The attempted implementation of the negotiation class in the Opiate litigation revealed numerous fault lines in the proposal. The negotiation class as applied failed to provide many claimants with comprehensible information regarding the devised allocation formula. Some claimants believed that it failed to ameliorate the kinds of intraclass conflicts it was designed to remedy. State attorneys general raised the specter of interference with state prerogatives. Furthermore, rather than empowering class members at the negotiation table, the development of the Opiate litigation defaulted to a traditional model of attorney empowerment and dominance in the resolution of aggregate proceedings. The promise of collective action and democratization proved illusory. The deployment of the negotiation class concept in the Opiate MDL also entailed problematic questions concerning the role of judicial surrogates in aggregate litigation and the increasing power and influence that courts delegate to non-party actors. Judge Polster’s embrace of the negotiation class in the Opiate litigation placed the judge, his court-appointed surrogates, and the array of plaintiff and defense attorneys in tension with the Supreme Court admonition to federal judges, at the end of the twentieth century, to cease adventurous use of the class action rule. It may well be that the Opiate MDL was a poor vehicle to test the negotiation class proposal and so the problem was one of implementation, rather than design. The failure of the Opiate negotiation class leaves open the question of whether those who crafted it could have done a better job to avoid appellate reversal. Nonetheless, if the array of special masters, expert academic professors, a seasoned senior judge, and highly experienced complex litigation attorneys were unable to successfully shepherd the first negotiation class, this experience raises doubts about its prospects. It should be remembered that the settlement class of the 1990s was a novel procedure in its day, yet it subsequently became a stock device in the class action toolbox. The history of the settlement class may foreshadow better days for the negotiation class or inspire further rulemaking by the federal judiciary to legitimate the negotiation class model

Repugnant Precedents and the Court of History

Aged Supreme Court precedents continue to tolerate many practices that would shock modern sensibilities. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very cultural shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot genuinely explain what ails societally outmoded decisions. Even for justices inclined to condemn these embarrassments in less clinical terms, it is unclear what qualifies courts to make universalist claims about contemporary American values. The Court recently sidestepped these difficulties by insisting that one of its most reviled decisions had been “overruled in the court of history.” In substituting rhetorical flair for analytical precision, however, the court-of-history trope threatens to destabilize the Court’s doctrines of horizontal and vertical precedent. This Article urges greater normality in implementing perceptions of national ethos. It first defends the inquiry’s legitimacy by recovering a longstanding judicial tradition of pronouncing specific practices abhorrent to modern cultural norms. It then underscores the project’s stakes by identifying an assortment of precedents that trudge along as ethical outcasts. After highlighting several tangible and expressive harms that these decisions can still inflict, I propose that the Court integrate its ethical judgments into the existing stare decisis framework. And I challenge the Court’s presumed incapacity to dislodge vestigial precedents. These relics may be difficult to pry loose, but we are not stuck with them forever

Private Caregiver Presumption For Elder Caregivers

The percentage of older Americans increases each year, with a corresponding percentage increase of those considered the older old. Many older persons will develop chronic conditions, decreasing their ability to manage the activities of daily living and requiring many to move into assisted living facilities or group homes. When surveyed, a majority of people expressed that they wish to age in their own homes, and government programs are increasingly supportive of this option. This is a viable option for many if they have the assistance of private caregivers—who provide a vast array of support services—and essential person-to-person human contact during the last years of life. Not all caregivers are family; many are friends, partners, and former colleagues. Whether family or nonfamily, private caregivers often provide a recipient with self-sufficiency for many years, and for some until death. This Article discusses the statistics of aging and the obstacles faced by private caregivers who suffer economic deprivation as a result of the time and expense expended on behalf of an elder recipient. Presumptions, statutes, and the process of estate devolution work against compensation for a private caregiver. There is far too little recognition of what is contributed when a person feeds, bathes, administers medications, provides companionship, and confronts the bureaucracy meant to help the old. The common sentiment of all caregivers would be that they do it because they feel they must. But upon the death of the recipient, one person should not walk away with the benefits of the decedent’s estate and the other with nothing except the recognition of what they must do and did. To better provide for the equal treatment of private caretakers, this Article posits the creation of a private caretaker presumption in favor of elder caregivers. This presumption would apply to any person who dedicates himself or herself another’s care for a period of time sufficient to engender economic benefit to the recipient’s estate and a concomitant loss to the caregiver. Then, based upon the estate assets available, the parameters of the claim, and defined mitigating factors, a presumption is raised that the caregiver may file a creditor claim against the estate in an amount that would make the caregiver equal to the other objects of the decedent’s bounty. Existing remedies are insufficient; more is needed to promote equity

Learning From Land Use Reforms: Housing Outcomes and Regulatory Change

This essay serves as the introduction for an edited, interdisciplinary symposium of articles studying recent land use reforms at the state and local level. These papers provide important descriptive analyses of a range of policy interventions, using quantitative and qualitative methods to provide new empirical insights into zoning reform strategies.After situating and summarizing the collected articles, the Introduction draws out shared themes. For example, these essays demonstrate the efficacy of recent reforms, not only at facilitating housing production but at doing so in especially difficult contexts (like when producing affordable housing and redeveloping single-family neighborhoods). They point to the characteristics of neighborhoods that may be most affected by land use reforms. They show the importance of close attention to forms of tenure and continued demand for ownership models even in densifying locations; the risks of inclusionary zoning as a strategy; and the importance of continued tinkering with policy details for successful implementation

Collusive Prosecution

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to extract greater punishments and defendants can avoid consequences they view as particularly burdensome. But these benefits can come at a cost to others who are not at the bargaining table. We contend that “collusive prosecution” of this sort can be pernicious, as may be the case when sex-offender registration and notification laws are in play, but it also has potential to be socially attractive. Accordingly, we sketch a normative framework for evaluating collusive prosecution as a matter of prosecutorial ethics. We draw on the emerging field of public fiduciary theory to characterize prosecutors’ ethical duties to varied—and often conflicting—beneficiaries. We suggest that programmatic uses of collusive prosecution may be fair and reasonable in a common immigration context, but collusive prosecution designed to relocate sex-offense registrants likely fail these conditions. Ultimately, we offer a suite of reforms that may be useful for policing collusive prosecution without banning the practice outright

Terrible Freedom, Ambiguous Authenticity, and the Pragmatism of the Endangered: Why Free Speech in Law School Gets Complicated

We idealize colleges and universities as places of unfettered inquiry, where freedom of expression flourishes. The Supreme Court has described the university classroom as “peculiarly the ‘marketplace of ideas.’” It declared: “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” The exchange of competing ideas takes place not only in classrooms, but also in public spaces, dormitories, student organizations, and in countless other campus contexts

Unraveling the International Law of Colonialism: Lessons From Australia and the United States

In the 1823 decision of Johnson v. M’Intosh, Chief Justice John Marshall formulated the international law of colonialism. Known as the Doctrine of Discovery, Marshall’s opinion drew on the practices of European nations during the Age of Exploration to legitimize European acquisition of territory owned and occupied by Indigenous peoples. Two centuries later, Johnson—and the international law of colonialism—remains good law throughout the world. In this Article we examine how the Doctrine of Discovery was adapted and applied in Australia and the United States. As Indigenous peoples continue to press for a re-examination of their relationships with governments, we also consider whether and how the international law of colonialism has been mitigated or unraveled in these two countries. While we find that the Doctrine lingers, close examination provides several important lessons for all Indigenous nations and governments burdened by colonization

How Might We Reimagine Transportation Technology to Combat Forced Labor: Conference Explanations and Recommendations from The Law and Mobility Program’s Annual Conference 2023

The University of Michigan Law School’s Law and Mobility Program (LAMP), a resource for scholarship about the legal implications of emerging transportation technology with a particular focus on connected and automated vehicles (CAVs), hosts an annual conference. The topic of the LAMP Annual Conference 2023 considered how we might reimagine transportation technology in a way that combats the systemic vulnerabilities that leave certain populations more likely to experience forced labor. This topic was selected because there are multiple lenses through which to consider the transportation equity outcomes for users, industry workers, and society at large; forced labor is just one metric. This point is twofold. First, this question matters in particular because transportation touches everything people do from shipping goods to commuting to work to recreational activities to community development. Second, the automobile industry, as was discussed during the conference’s first panel, has an enormous global footprint with many layers within the supply chain, making it a great example for other industries to consider environmental, social, and governance (ESG) challenges in their own contexts. There are many notable historical examples of the impacts of emerging transportation technologies on labor conditions and access to dignified employment, and paying attention to the lessons learned from those outcomes may help policymakers better anticipate the equity outcomes of regulatory decisions. After articulating why this topic is important in the transportation technology space, LAMP researchers identified four categories through which to understand the research. The categories are organized by population and include, 1) people working in the raw material and mining sectors harvesting the relevant materials to construct the technology such as cobalt and copper; 2) people working in the transportation industry in United States such as transit operators, truck drivers, and mechanics; 3) the user of the emerging transportation technology in their commute to work, and; 4) the nonuser community member whose access to employment or daily commute may be radically altered in an attempt to accommodate new technologies such as changes to bike lane, sidewalks, increased urban sprawl, or public transit routes. The type of analysis for each category varied. At the conference, the first and fourth panels explored many historical examples and existing law and policy tools, while the second and third panels identified questions and theoretical frameworks through which to best understand the needs of the communities. Part II of this report will explain the methodology of this research and summarize the original literature review that was used to shape the conference format. Parts III through VI will present the findings of each respective panel. Finally, part VII will conclude with recommendations and lessons learned

Title IX and Menstruation or Related Conditions

Title IX of the Education Amendments Act of 1972 (“Title IX”) prohibits sex discrimination in educational programs or activities receiving federal financial assistance. Neither the statute nor its implementing regulations explicitly define “sex” to include discrimination on the basis of menstruation or related conditions such as perimenopause and menopause. This textual absence has caused confusion over whether Title IX must be interpreted to protect students and other community members from all types of sex-based discrimination. It also calls into question the law’s ability to break down systemic sex-based barriers related to menstruation in educational spaces. Absent an interpretation that there is explicit Title IX coverage, menstruation will continue to cause some students to miss instruction. Other students may be denied access to a menstrual product or a restroom as needed and face health consequences. They also may be teased and bullied after menstrual blood visibly leaks onto their clothes. Employees, who are also covered by Title IX, may be fired for damaging school property as a result of such leaks.1 People in perimenopause may be denied reasonable modifications like bathroom access, water, or temperature control. Collectively, this creates an educational system that prevents students, faculty, or employees from fully participating in educational institutions and causes harm